Tarnished Twenty- The FindLaw Sports Law Blog

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For many years, it was understood that college athletes retained little, if any, right to their likenesses while they fell under the pseudo-legal "student athlete" distinction. The NCAA was free to use player and school names and images to advertise single games, tournaments, and even video games. That was until Ed O'Bannon sued, and federal courts ruled the NCAA couldn't deny athletes of the monetary value of their names, images, and likenesses when used for commercial purposes.

While that ruling may have meant the end of beloved college sports video games (absent money flowing to the athletes themselves), it didn't mean that student athletes retained their rights of publicity in all arenas. Take, for example, daily fantasy gambling sites. The Seventh Circuit last week dismissed a lawsuit filed by college athletes against FanDuel and DraftKings, based on a prior Indiana Supreme Court ruling that the sites could use players' names and images without their consent.

Dr. James Andrews is probably the most recognized name when it comes to world class athletes and injuries. The orthopedic surgeon has performed Tommy John surgery on just about every pitcher you know, along with surgeries on Bo Jackson's hip, the shoulders of Cowboys trio Troy Aikman, Michael Irvin, and Emmitt Smith, and knee operations on golfer Jack Nicklaus and wrestler CM Punk. Needless to say, if you're an elite athlete that needs major surgery, you go to Dr. Andrews.

That's certainly what Vikings defensive tackle Sharrif Floyd thought when he went to Andrews for meniscus surgery in 2016. But that operation didn't yield the results of some of the doctor's others. According to Floyd's attorney, the former All-American suffered permanent nerve and muscle damage during the procedure, and will likely never play again.

Whatever our thoughts on Colin Kaepernick, NFL players kneeling during the national anthem to protest police brutality (among other issues), or the free speech rights of athletes generally, most of us didn't go blaming the teams for what the players were doing. Or, worse, accusing the team of intentionally inflicting emotional distress by not warning us that a player might not emerge from the locker room for the national anthem.

Then again, most of us aren't Lee Dragna of Morgan City, Louisiana. Mr. Dragna sued the New Orleans Saints, claiming he never would've purchased season tickets "if he had known that Saints players would use their games as a platform for protests." But a state appeals court summarily bounced that lawsuit, ruling that his lawsuit had failed to state a cause of action.

Depending on which television stats you cherry pick, the National Football League is either dying or it's immortal. But there's little doubt the NFL has been locked in a public relations battle the past few years. From a wave of domestic violence and assaults, to concussion and painkiller class action lawsuits, and now the (mis)handling of player protests, the league -- regardless of burgeoning income -- has been working overtime to burnish its image.

So it's likely with open arms that the NFL welcomed a report from USA Today showing a significant decline in player arrests since 2014. So, are the numbers really that good? And, if so, why?

When NFL legend Junior Seau fatally shot himself in the chest in 2012, his death had all the markings of other brain injury-related suicides by ex-football players, most notably that of Dave Duerson earlier the same year. Duerson had written down a request that his brain be examined for signs of chronic traumatic encephalopathy, or CTE, a neurodegenerative disease found in people who have had multiple head injuries that can cause behavioral problems, mood problems, and problems with thinking, and, late in life, dementia. Though Seau didn't make the same request as Duerson, his family submitted his brain tissue to the National Institute of Neurological Disorders and Stroke, who determined his brain showed definitive signs of CTE.

Seau's family opted out of the massive concussion class action lawsuit against the NFL (and the massive settlement), choosing instead to file a separate wrongful death claim against the league. The family and the NFL settled that suit last week, for an undisclosed amount.

Are Schools Liable for High School Football Injuries?

The school year is in full swing, and so are high school sports. Athletes love to play, and students love to watch. Often, the more contact, the better! But what happens when a student-athlete is injured? Is the school liable, specifically in the case of high school football?

In the East Bay of Northern California, on the same Friday night, two football players from two different schools in two different games both ended up with major nerve trauma and were flown to same hospital. Though high school football injuries are uncommon, they certainly aren't rare. Can parents sue for their children's injuries? The answer is, it depends.

It's the week of resurrected legal claims against the NFL. Just days after the Ninth Circuit revived a lawsuit claiming the league was complicit in players' long-term health effects and addiction to painkillers, the Second Circuit rekindled a different lawsuit claiming the NFL and Associated Press failed to pay royalties to several photographers for the use of photos they took at and during games.

The photographers allege the NFL has made "widespread use" of their work, all without payment, claiming "the NFL has committed thousands of individual acts of copyright infringement."

"It's as if one spouse walks in the door and says to his or her spouse, 'I'm leaving you. I've found someone who loves me more. And oh, by the way, I'll still be living with you while we build our dream house together.'"

That was Raiders CEO Amy Trask, responding to news that the City of Oakland will be filing an antitrust lawsuit against Raiders ownership and the National Football League, claiming that the league and other team owners colluded to move the franchise to Las Vegas. The city claims it's more like "I've found someone whom I love more," after eleventh hour attempts to keep the team in Oakland were rebuffed. And, according to Oakland Coliseum authorities, the lawsuit could mean that love-seeking ex-spouse getting kicked out of the home much sooner than expected.

Originally filed in 2014, a lawsuit by and on behalf of former NFL players claiming the league was complicit in long-term damage and addiction to painkillers has gone through a few ups and downs. A federal judge dismissed the proposed class-action, finding that the players' collective bargaining agreement with the league required players to turn to arbitration to resolve the dispute. (Meanwhile another painkiller lawsuit was filed and cleared that hurdle.)

This week, however, the Ninth Circuit Court of Appeals overturned the prior dismissal of the original lawsuit, finding "the district court erred in holding that the players' claims were preempted."

An arbitrator overseeing Colin Kaepernick's grievance against the NFL alleging teams colluded to keep him off rosters following his protests during the national anthem two years ago has ruled that there is sufficient evidence to proceed. The NFL had requested the claims be dismissed, but arbitrator Stephen Burbank determined there were genuine issues of fact that needed to be resolved at a trial-like hearing later this year.

That means all 32 NFL teams are still parties in the grievance, and team owners, general managers, and even President Trump could be potential witnesses and targets in Kaepernick's claims.